New OSHA Policy Memorandum on Employer Practices that can ...

<strong>OSHA</strong> Memo on Injury & Illness Reporting
HEALTH, SAFETY,
& ENVIRONMENT
DEPARTMENT
safety@usw.org
412-562-2581
SHEET
<strong>New</strong> <strong>OSHA</strong> <strong>Policy</strong> <strong>Memorandum</strong> on Employer Practices that can
Discourage Injury and Illness Reporting
“Reporting a work-related injury or illness is a core employee right, and retaliating
against a worker for reporting an injury or illness is illegal discrimination.”
In March, 2012 <strong>OSHA</strong> issued a memorandum titled “Employer Safety Incentive and
Disincentive Policies and Practices”. This memorandum outlines <strong>OSHA</strong>’s position regarding
employer policies and practices that discourage workers from reporting job injuries and
illnesses. It explains workers’ legal protections for reporting injuries and illnesses under
Section 11(c) of the Occupational Safety and Health Act, other whistleblower programs (such
as the Federal Railway Safety Act) and under <strong>OSHA</strong>’s Recordkeeping Rule (29 CFR 1904).
Which Employer Policies and Practices Could Be Illegal?
The memorandum gives examples of four types of employer policies and practices that could
violate <strong>OSHA</strong> Section 11(c) and other whistleblower protections and could also result in
violations of <strong>OSHA</strong>’s recordkeeping requirements:
Injury Discipline: Where employers have a policy or practice of disciplining workers who
report injuries, regardless of the circumstances surrounding the injury. This would violate
11(c) and could also violate an employers’ obligation to establish a way for employees to
report injuries as required by <strong>OSHA</strong>’s recordkeeping rule.
Discipline for “Untimely” Reporting of Injuries or for Not Reporting Injuries in the
Way Required by the Employer: Where employers have rules that all injuries must be
reported immediately, and workers are disciplined even in cases where they do not
immediately realize that an injury or illness has occurred or that an injury and illness was
serious enough to be reported; or where the employer’s reporting requirements are
unreasonable, unduly burdensome or enforced with unjustifiably harsh penalties.
Discipline for “Violating a Safety Rule”: When employers use violating a safety rule as
an excuse for disciplining workers who report job injuries and illnesses; or when employers
have vague rules like a requirement that employees “maintain situational awareness” or
“work carefully” and then only discipline workers for violating those rules when they report
injuries. Enforcing such rules more harshly against injured employees than noninjured
employees may suggest that the rule is a pretext for discrimination against an injured
employee in violation of <strong>OSHA</strong> section 11(c).
Safety Incentive Programs: Where employees are disqualified from rewards and prizes
because injuries and illnesses are reported. Incentive programs that unintentionally or
intentionally provide employees an incentive not to report injures can be a violation of 11(c)
and result in unreported injuries in violation of <strong>OSHA</strong>’s recordkeeping rule.
In addition, <strong>OSHA</strong>’s memorandum states, “<strong>OSHA</strong> has also observed that the potential for
unlawful discrimination under all of these policies may increase when management or
supervisory bonuses are linked to lower reported injury rates.” <strong>OSHA</strong> highlights in the
memorandum,
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“If employees do not feel free to report injuries or illnesses, the employer’s entire workforce is
put at risk. Employers do not learn of and correct dangerous conditions that have resulted in
injuries, and injured employees may not receive the proper medical attention, or the workers’
compensation benefits to which they are entitled. Ensuring that employees can report injuries
and illnesses without fear of retaliation is therefore crucial to protecting workers health and
safety.”
What Unions Can Do
Send us copies of written programs or policies that you believe can discourage workers
from reporting injuries or illnesses. See below for contact information for the USW Health,
Safety and Environment (HSE) Department.
Download a copy of the <strong>OSHA</strong> memorandum at http://www.osha.gov/as/opa/
whistleblowermemo.html and share it with management, making them aware of <strong>OSHA</strong>’s
new guidance on these policies and practices. You can also read <strong>OSHA</strong> Section 11(c) at
http://www.osha.gov/pls/oshaweb/owadisp.show_document?
p_table=STANDARDS&p_id=11333.
In a USW-represented facility where management had recently introduced a safety
discipline practice that resulted in discipline to workers who reported injuries, the
union’s safety rep provided management with a copy of <strong>OSHA</strong>’s <strong>Memorandum</strong>.
Management withdrew the safety discipline policy, rescinded the discipline it had
given, and apologized to the local union.
Contact <strong>OSHA</strong>’s whistleblower program (call 1-800-321-<strong>OSHA</strong> for the <strong>OSHA</strong> office nearest
you) to discuss filing formal complaints for violations of <strong>OSHA</strong>’s Section 11(c) or other
whistleblower protections and/or <strong>OSHA</strong>’s Recordkeeping Rule. The USW HSE Department
can assist (contact information below). Note that an <strong>OSHA</strong> 11(c) discrimination complaint
must be filed within 30 days of the employer’s adverse action. Unions can assist members
in filing 11(c) discrimination claims. Again, the USW HSE Department can help local unions
and Staff Representatives with this.
Inform and educate your members about <strong>OSHA</strong>’s new guidance on employer policies and
practices that can discourage workers from reporting job injuries and illnesses. Also let
members know about the union’s availability to help protect workers’ rights to report injuries
and illnesses without suffering retaliation. The USW HSE Department can provide
materials and assistance (contact info below).
If your employer is covered by the National Labor Relations Act (or other labor law with
similar provisions), an employer’s unilateral implementation of a new safety incentive or
discipline policy could be an unfair labor practice; mid-term bargaining rights should be
considered. Contact your Staff Representative for assistance.
Please keep the USW Health, Safety and Environment Department posted as you address these
issues. Contact us at 412-562-2581 and send questions or updates to safety@usw.org. Send
copies of policies/programs to: Health, Safety and Environment Department Rm. 902, United
Steelworkers International Union, 5 Gateway Center, Pittsburgh, PA 15222; or fax to 412-562-
2584; or scan/email to safety@usw.org. Thank you!
This factsheet was funded in whole or in part with federal funds from the Occupational Safety and Health Administration, U.S. Department of
Labor, under grant number SH-22244-11-75-F-42. These materials do not necessarily reflect the views or policies of the U.S. Department of
Labor, nor does mention of trade names, commercial products, or organizations imply endorsement by the U.S. Government.
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